Tuttsi V Halifax ( 18 year claim )

[TUTTSI]

I have a Cardcash account that commenced in 1990 and ended in 2002. Unfortunately it makes the whole claim over 6 years old. I am going to try and make a claim and have done the spreadie with various options on CCI it is extremely large. But before I send the letters to Halifax I wondered if anyone has the T&C's for 1990, a tall order I know, but someone may just be sitting on one or know how to obtain one.

I did ask Halifax in my SAR for the T&C's but this fell on deaf ears.

Also, if anyone has any ideas on the Limitation Act!

Thanks
Dsxx

[Amethyst]

Re: Tuttsi V Halifax ( 18 year claim )

well i wouldnt ask for a strike out, the court will give h'fax 7/14/28 days to get directions in and your claims back on a roll - their directions will be strike and you'll have 7/14 etc days to respond (if not an ex parte summary judgment where you'd have to apply to set aside etc thinking application fees) . I havent heard any Abbey or h'fax cases applications to court as yet but will keep my ears/eyes open.

You could, if you were ready with POC's and I havent looked at h'fax specifically for POCs yet so you can be researching that would be helpful, then you could enter directions to allow you to amend claim and them defend that within 14 days etc. be like you enter the 500 word case summary and proposed directions that the court has asked for from the bank so that would avoid fees too.

i'm sure you realise this is all a new area and personally I wouldnt feel happy putting you in a position where you have a date to enter new POCs by or get struck out, or incur further costs from hfax.

Its very difficult to know what to do, it might be an idea, if you can, to wait till second week of feb when we should have more formal opinions and a much better idea on the defences and costs being applied for in case in court over the next couple of weeks.

Re: Tuttsi V Halifax ( 18 year claim )

The trouble is without doing anything now there is always the possibility that they will sudenly write and the court could strike it out without reference to us.

I just wanted the court to be aware that the fight is not over?

Tuttsi xx

mmmmm pity the stay order wasn't an unless order really.


If the case isnt going to be struck in their favour then I'd be tempted to leave it sitting there until H'fax make a move or at least until you have a better idea how the cases are going to go from this point forwards. I really think the chances of success are minimal and the risks of costs high. You have to get the legal arguments accepted before you can even start arguing the limitations issues and compound interest issues.

[Amethyst]

Re: Tuttsi V Halifax ( 18 year claim )

mmmmm pity the stay order wasn't an unless order really.


If the case isnt going to be struck in their favour then I'd be tempted to leave it sitting there until H'fax make a move or at least until you have a better idea how the cases are going to go from this point forwards. I really think the chances of success are minimal and the risks of costs high. You have to get the legal arguments accepted before you can even start arguing the limitations issues and compound interest issues.

Re: Tuttsi V Halifax ( 18 year claim )

I phoned Barnet County Court and she looked up my case and nothing at all has been heard from Halifax.

She has suggested that as Halifax have not responded to the stay order I should write in requesting further Directions in this matter.

Tuttsi



We have not heard at all from Halifax legal dept in respect of mine and Mr T's claim for bank charges and the stay conditions are the same as the HSBC.

Should I write imediately to the court along the same lines as the letter Mr T has just done on his HSBC court claim to keep the claim alive if I can?

Thanks
Tuttsi xx

[Amethyst]

Re: Tuttsi V Halifax ( 18 year claim )

have you called the court to see if anything has been received?

Re: Tuttsi V Halifax ( 18 year claim )

We have not heard a dickie bird from Halifax or it's legal dept in respect of mine and Mr T's claim for bank charges and the stay conditions which catorgorically state it was for the defendant to file at the court within 28 days and file a case summary not more than 500 words. As this has not happened what should I be doing now?

Thanks
Tuttsi xx
Page 1 of Stay
Upon considering the papers filed herein Upon it appearing to the Court that:
(a) a test case has been issued in the High Court between the Office of Fair Trading and certain banks under the title Office of Fair Trading -v- Abbey National PLC and Others (Claim No 2007 Folio 1186) ('the test case'), with a view to determining issues of legal principle in relation to the recovery of charges made on bank current accounts and the applicability of the Unfair Terms in Consumer Contracts Regulations 1999 and other legislation to such charges
(b) further information in relation to the test case is likely to be available through the website of the Office of Fair Trading at: The Office of Fair Trading: making markets work well for consumers
(c) the issues raised in the test case will affect this claim.
DISTRICT JUDGE STEEL ORDERED that
1. This claim is stayed until further order with a view to awaiting the final decision in the test case (which shall be interpreted as the outcome of any appeal or the expiry of time for permission to appeal the first instance decision).
2. The Defendant shall within 28 days of the final decision in the test case file at Court and serve on the Claimant:
(a) a case summary of not more than 500 words setting out the effect of that decision;
(b) their proposed directions in this claim.
3. Upon receipt of the documents set out at paragraph 2 of this Order the file be
Page 2
referred to a resident District Judge to consider further directions.
4. Either party may apply at any time, by application on notice in accordance with the Civil Procedure Rules 1998 Part 23, to lift the stay.
5. Any party affected by this order may apply to have it set aside, varied or stayed provided that any such application is made to the Court in writing no more than seven days after the date on which this order was served on that party.

[Ruby]

Re: Tuttsi V Halifax ( 18 year claim )

I am going through a claim at the moment with Bank of Scotland, although not in the same circumstances, my account is still active. I am interested in the compound interest side of things. I have the original T & C's for BOS dated 1st April 2003. Is this when BOS and Halifax merged?

Monthly credits of £1000 or more the authorised rate was 8.9% EAR and unauthorised rate was 28.8% EAR.

Monthly credits of less that £1000 were 18.9% and 29.8%.

There is obviously a huge difference between the standard 8% and 28.8%!

To me that would mean a payout of 10K instead of 3.5K.

I read somewhere else on this site that with credit cards you should request back the compound interest that they charged you. Whey should it be any different with bank charges?

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

Good idea Tuttsi.

Am sure TB has lots of other useful stuff that we can use later on as well.

I also have some additional material for use regarding the compound interest section of your claim.

Budgie

Re: Tuttsi V Halifax ( 18 year claim )

Thanks Bud. I just put it here for the time being, so that I could find it if needed at some point and as you say it may be usefull latter.

Tutts

We already covered Limitation Act Section 32(1) b and 32(1) c in your POC Tuttsi.

But there is some additional ( useful stuff ) in Tom's notes that we can adapt and use for a witness statement in your claim once the stay is lifted.

Am sure that you are already aware but you shouldn't get too excited just because the judgement in the Supreme Court appeal is being handed down next week. It doesn't mean that the stay on your claim is going to be lifted any time soon.

[Budgie]

Re: Tuttsi V Halifax ( 18 year claim )

We already covered Limitation Act Section 32(1) b and 32(1) c in your POC Tuttsi.

But there is some additional ( useful stuff ) in Tom's notes that we can adapt and use for a witness statement in your claim once the stay is lifted.

Am sure that you are already aware but you shouldn't get too excited just because the judgement in the Supreme Court appeal is being handed down next week. It doesn't mean that the stay on your claim is going to be lifted any time soon.

Re: Tuttsi V Halifax ( 18 year claim )

Kindly supplied by Exc .... TB's opinion on claiming charges back to 1995 should test case go our way.

Tuttsi

This is Tom's legal argument for the theory that charges can be claimed back to 1995:

There is indeed a very strong argument that the charges can be claimed back to 1 Jan 1995. Although the UTCCR 1994 (the original regulations) came into effect on 1 July 1995, the Directive applied to all contracts that were concluded after 31 December 1994. There is a gray area over contracts that were concluded before 31 December 1994 and the coming into force of the Regulations in 1 July 1995, but the point remains the same that claims can be back-dated to 1995.

There is an additional argument over the Limitations Act 1980:

Section 32(1)(b) of the Limitation Act 1980 postpones the commencement of the limitation period where

“any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.”

This particular provision was considered by the House of Lords in Cave v Robinson Jarvis & Rolf [2002] UKHL 18. As was pointed out by Lord Millet at paragraph 8:

"In such a case the period for limitation does not begin to run until the plaintiff discovers the concealment or could with reasonable diligence discover it. The reason for the rationale is plain: if the defendant is not sued earlier, he has only himself to blame."

Section 32(2) of the 1980 Act provides that

For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.


The banks have always known that the charges imposed for breaches of the overdraft facility have been disproportionate to the true cost to the bank of such breaches. The banks have consistently maintained that such charges are fair and reasonable and reflect the true cost to the banks. If those charges are found to be disproportionate, then it follows that the banks have deliberately concealed that fact from the public and from any potential claimant. It follows from this that the 6 year period of limitations does not begin to run until those facts have been, or could have been discovered by any claimant, i.e. the investigation or conclusions of the OFT in respect of bank charges.

There is also support for this position from the European Court of Justice (ECJ). InCofidis SA v Jean-Louis Fredoutthe ECJ was considering the issue of time limits in respect of Unfair Terms. Under the French national law, the first paragraph of Article L. 311-37 of the Code de la consommation provides:

`The Tribunal d'instance shall have jurisdiction to hear disputes arising from the application of this chapter. Actions brought before it must be raised within two years of the event which gave rise to them and are otherwise time-barred ...'.

The question put to the ECJ was

''Does that requirement of an interpretation in conformity with the system of consumer protection under the directive require a national court, when hearing an action for payment brought by a seller or supplier against a consumer with whom he has contracted, to set aside a procedural rule on pleas in defence, such as that in Article L. 311-37 of the Code de la consommation, in so far as it prohibits the national court, either on the application of the consumer or of its own motion, from annulling any unfair term which vitiates the contract where the latter was made more than two years before the commencement of proceedings, and in so far as it thereby permits the seller or supplier to rely on those terms before a court and base its action on them?''

Essentially, the question was whether or not the court must apply a limitation period laid down by national legislature.

The court concluded:

“It is therefore apparent that, in proceedings aimed at the enforcement of unfair terms brought by sellers or suppliers against consumers, the fixing of a time-limit on the court's power to set aside such terms, of its own motion or following a plea raised by the consumer, is liable to affect the effectiveness of the protection intended by Articles 6 and 7 of the Directive. To deprive consumers of the benefit of that protection, sellers or suppliers would merely have to wait until the expiry of the time-limit fixed by the national legislature before seeking enforcement of the unfair terms they would continue to use in contracts''.

''A procedural rule which prohibits the national court, on expiry of a limitation period, from finding of its own motion or following a plea raised by a consumer that a term sought to be enforced by a seller or supplier is unfair is therefore liable, in proceedings in which consumers are defendants, to render application of the protection intended to be conferred on them by the Directive excessively difficult.”

This indicates that national time limits on claims involving unfair terms should not, in principle, be used to prevent consumers from having effective protection. The problem is that this was a case of a seller or supplier seeking to enforce the unfair contract term against the consumer, rather than a consumer seeking redress for the past use of an unfair term. The policy considerations remain the same, however, that national limitation periods in respect of unfair terms should not be applied to consumer cases.

After all, a right without a remedy is no right at all

Re: Tuttsi V Halifax ( 18 year claim )

First thing I would suggest is that as Abbey didnt pay out the full claim before, then why not approach them for a further interim payment based on your hardship status. What did the last £4+k cover in your last request, i.e what did you tell them it was for? Did you tell them that you needed that amount to cover mortgage arrears ? Are any of the Abbey charges pre 6 year? We just sent them documentary evidences of ALL our debts crystalised at that time which accelerated the hardship status. Abbey they just paid a standard 65% the same as most others received at that time. It was not to cover a pacific amount.

Had they have paid my claim in full I would have been able to have cleared the arrears totally, but other essential supplies such as Council Tax, Electricity and Gas would have suffered.

If Halifax have accepted that you are in financial hardship then you can use this when you write to the FOS. The pre 6 charges do cloud the situation a little but if you write to the FOS and inform the Halifax that you have done so, then it may just spur them on a little.

Good idea, I am thinking that we should write to the Halifax first giving them a bite of the cherry first, and advising them that I will pass my file to the FOS......What do you think!

xx

[Tools]

Re: Tuttsi V Halifax ( 18 year claim )

First thing I would suggest is that as Abbey didnt pay out the full claim before, then why not approach them for a further interim payment based on your hardship status. What did the last £4+k cover in your last request, i.e what did you tell them it was for? Did you tell them that you needed that amount to cover mortgage arrears ? Are any of the Abbey charges pre 6 year?

If Halifax have accepted that you are in financial hardship then you can use this when you write to the FOS. The pre 6 charges do cloud the situation a little but if you write to the FOS and inform the Halifax that you have done so, then it may just spur them on a little.

Re: Tuttsi V Halifax ( 18 year claim )

I have to disagree with you Tanz, I do still think that the FOS are approachable even though the complaint is now in Court. I was thinking that too, based on the Financial Hardship.

Tuttsi, you mention your mortgage is still in arrears, were these not cleared with the £4k+ paid out by Abbey back in September? Unfortunately it was not enough to clear our mortgage arrears in total, we are paying an extra £250 month on top of our mortgage, so I kept it back for paying the mortgage payments when we had a shortfall each month, as the interest rates have been incredibly high. We also had some minor remedial work done at home which was a necessity and also ensential car repairs and MOT. Had Abbey have paid 100% there would have almost have been enough to clear the arrears and that would have saved us the extra £250 per month.

I agree that you could ask for a lift based on hardship grounds if you could demonstrate to them that is the case and they accepted it. This would have to be based on your current situation. Will have another read of your attached letters and digest more as I have only quickly skimmed through them.

As I said we do still come under the hardship situation, we still have the suspended order on the mortgage and arrears. I now just need to decide on the best way forward, bearing in mind the total of the claim now must be all outside the 6 years limitations. Halifax did agree our hardship on the one charge.

I will await your further advice in this matter.

xx